110 N.Y.S. 280 | N.Y. App. Div. | 1908
.Upon affidavits alleging that this action was brought by the Forest, Fish and Game Commission by its special counsel to recover
For the purpose of determining the right of the Attorney-General to make the motion we must assume that the allegations in the moving papers are true. The Attorney-General is a constitutional officer,
The Executive Law (Laws of 1892, chap. 683, as amd. by Laws of 1894, chap. 68; Laws of 1895, chap. 821,. and Laws of 1904, chap. 179) at section 52 defines the duties of the Attorney-General, and, among other things, provides that “ The Attorney-General shall * * * prosecute and defend all actions and proceedings in which the State is interested, and have charge and control of all the legal business of the departments and bureaus of the State, or of any office thereof which requires the services of attorney or counsel, in order to protect the interests of the State, but this section shall not apply to any of the military department bureaus or military offices of the State.”
The office of Attorney-General is an ancient one, and in England and in this country, from the earliest times, such officer, as the chief legal officer of the State, has performed certain duties and exercised certain authority which in terms may not definitely be prescribed by' statute. The general law officer of the State, therefore, charged by the above statute and by the general duties of his office as the attorney for the State, is a proper person to bring before the court a consideration of the right of a State board to make such stipulation and permit such judgment to be entered. If the contention of the Attorney-General is right, it is evident that the court directing judgment on such stipulation was misled by the stipulation, was not informed of the facts and acted upon the assumption that the Commission vyas acting within its authority. It is quite probable that any officer of the court, perhaps any taxpayer of the State, who discovers that a State commission is exceeding its authority and disposing of the State’s property without right and under color of a judgment of the court improperly obtained, may apply to the court and ask that its judgment shall not be used for such purpose, and that such stipulation and judgment be vacated. It is unnecessary, however, to consider that question, for it seems evident that the Attorney-General is well within the performance of his official duty when he asks the court to pass upon the regularity of such proceedings and to vacate such judgment and stipulation if improperly made.
Sections 52 of the Executive Law and 222 of the Forest, Fish-
The order should be reversed and the motion remitted to the Special Term for hearing upon its merits, without costs.
All concurred.
Order reversed and the motion remitted to Special Term ,for hearing on the merits, without costs,
See 55 Misc. Rep. 507.— [Rep.
See Const, art. 5, §§ 1, 2.— [Rep.